DOJ: Judge Was Wrong To Rule That House Has Right To See Secret Mueller Docs

Attorney General William Barr opposes the release of secret grand jury material from then-special counsel Robert Mueller's investigation into Russian interference in the 2016 election.

Patrick Semansky
/ AP

Originally published on December 2, 2019 9:06 pm

The Justice Department says releasing secret grand jury documents from then-special counsel Robert Mueller's Russia probe to House lawmakers engaged in the impeachment inquiry could discourage future witnesses to presidential abuse from cooperating with grand juries.

"It is not difficult to imagine that a witness in a future investigation of alleged presidential misconduct might be deterred from testifying fully or frankly if she believed that her testimony would be readily disclosed to the House for use in impeachment proceedings," Justice Department lawyers wrote in a brief filed on Monday to the U.S. Court of Appeals for the District of Columbia Circuit.

Attorneys for the Justice Department are asking the appeals court to reverse a lower court's decision ordering the transfer of Mueller grand jury material to House investigators on a two-pronged argument: that an impeachment inquiry is not a "judicial proceeding" and that the House does not really need the documents to complete the impeachment investigation.

The legal standard required for such sensitive material to be sent to Congress requires that lawmakers show they need the secret material to fill holes in a story, assist in fully investigating or check if a witness is being truthful.

The Justice Department lawyers argue that the lower court ordered the documents be sent to the House without lawmakers ever meeting that standard.

"Instead, the district court applied an impeachment-specific and toothless version of that standard—so toothless that the court even ordered the disclosure of grand-jury information that the Committee conceded that it did not need," wrote Assistant Attorney General Joseph Hunt.

The Justice Department has been fighting to keep the material out of the hands of House lawmakers ever since the Democratic-led Judiciary Committee sought the material in July.

In October, a federal judge in Washington sided with the House, issuing an opinion that ordered Justice Department officials to produce the material in the midst of the impeachment inquiry into President Trump.

"The reality is that DOJ and the White House have been openly stonewalling the House's efforts to get information by subpoena and by agreement, and the White House has flatly stated that the Administration will not cooperate with congressional requests for information," wrote Chief U.S. District Judge Beryl Howell, saying such efforts to block the release of information to House investigators "weighs heavily in favor of disclosure."

Days later, the Justice Department appealed, saying the release of grand jury material to the House committee would be damaging to the department because once it is transmitted to lawmakers, "grand jury secrecy will be pierced."

The appeals court granted an administrative stay, pausing the lower court's order that the materials be immediately sent to Congress.

When Mueller submitted to Congress his 22-month report on Russia's interference in the 2016 election, segments of the document were blacked out under grand jury rules. The redacted portions included transcripts of witnesses who appeared before the grand jury, known in the FBI as a 302 report. The Justice Department did provide many of these reports to the House, but it complained of "substantial unexplained redactions" in the report that lawmakers say could be relevant to the impeachment inquiry.

Other sections were redacted because information came from intelligence agencies or the material was connected to separate investigations that were spun off Mueller's work.

Such information is typically kept secret, even to members of Congress. But an impeachment inquiry presents a special legal scenario, and the House cited a Watergate era precedent that allowed impeachment investigators back then to review Watergate grand jury material.

On Monday, Justice Department lawyers disputed that the 1974 case settled the issue, insisting that since the impeachment inquiry is not a "judicial proceeding," the material cannot fall within the confidential material exception the House lawyers cite.

"Even within the terms of the 'judicial proceeding' exception, the Supreme Court has stressed that secrecy remains the default," Justice Department attorneys wrote in their brief.

The dispute is one of a number of struggles between the legislative and executive branches that have arisen during the impeachment inquiry. Trump has dismissed the probe as a sham process undertaken by his political enemies, but House Democrats say the White House has been abusing its power by attempting to stymie the oversight role of a co-equal branch of the federal government.

Oral arguments before the federal appeals court on the Mueller grand jury material fight have been scheduled for Jan 3.

That is the same day that the appeals court has agreed to hear arguments on a separate legal fight in which the House is seeking the testimony of former White House counsel Don McGahn following a federal district court ruling that he must comply with a congressional subpoena.

Even though the cases are on an expedited timeline, the hearings may still be too late for lawmakers who are considering drafting articles of impeachment before Christmas.